NSA leaker Edward Snowden has officially been charged with three felonies, two of them falling under the 1917 Espionage Act, including "willful communication of classified communications intelligence information to an unauthorized person." If convicted, he could face decades or even life in prison.
The Obama administration has now charged seven people under the Espionage Act. Prior to Obama's inauguration, only three people had ever been charged under that law.
As Glenn Greenwald puts it in The Guardian, "the statute is so broad that even the U.S. government has largely refrained from using it" in the past. It was passed two months after the United States entered World War I with the stated aim of preventing people from sharing classified information about national defense, although, as the Brookings Institution's Benjamin Wittes tells NPR, the wording is much more vague than that:
We think about the Espionage Act as forbidding disclosures of classified information. That's not really what the statute says. What the statute talks about is information related to the national defense. And so, you know, I think if you were to go take pictures of ships at Pearl Harbor, that is not classified information, but it arguably is information related to the national defense.
On the other hand, if you imagine a highly classified diplomatic cable that's sensitive for reasons having nothing to do with national defense, it's classified for other reasons. And so I think you do have this weird mismatch under the Espionage Act. The categories don't really line up very well with the modern classification system. [NPR]
Charles Pierce uses harsher words to describe it in Esquire, calling the Espionage Act a "foul relic of a foul time, born of the repressive mind of Woodrow Wilson, American history's most overrated man, employed to quash dissent during World War I, and then repurposed for the Red Scare that followed hard on the Armistice, and it rose again during the subsequent Red Scares after the subsequent world war."
The Espionage Act is often associated with the much-maligned Sedition Act, passed one year later, which more or less made it illegal to criticize the U.S. government. While the Sedition Act was repealed in 1920, the Espionage Act has survived in amended form. Before Obama, it was used to charge Daniel Ellsberg, leaker of the Pentagon Papers, under President Nixon; Samuel Morrison under President Reagan; and Lawrence Franklin under President George W. Bush.
The next seven — Thomas Drake, Shamai Leibowitz, Stephen Kim, Jeffrey Sterling, John Kiriakou, Bradley Manning, and Edward Snowden — were all charged on Obama's watch. And it's mainly political, argues Greenwald:
It's a completely one-sided and manipulative abuse of secrecy laws. It's all designed to ensure that the only information we as citizens can learn is what they want us to learn because it makes them look good. The only leaks they're interested in severely punishing are those that undermine them politically. The "enemy" they're seeking to keep ignorant with selective and excessive leak prosecutions are not The Terrorists or The Chinese Communists. It's the American people. [The Guardian]
The Justice Department has defended its actions, claiming that it "does not target whistle-blowers."
It remains unclear if Snowden will even stand trial. He is reportedly seeking asylum in Ecuador.